Citation Nr: 1707014
Decision Date: 03/08/17 Archive Date: 03/16/17
DOCKET NO. 12-05 507 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia
THE ISSUES
1. Entitlement to an increased evaluation in excess of 10 percent for tendonitis left shoulder.
2. Entitlement to an increased evaluation in excess of 10 percent for low back strain.
3. Entitlement to a compensable evaluation for traumatic cataract with corneal scar left eye.
4. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for eczema.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
E. Skiouris, Associate Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from October 1995 to November 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2010, rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a timely notice of disagreement in September 2010. The RO issued a statement of the case (SOC) in January 2012. The Veteran subsequently perfected her appeal with a VA Form 9 in February 2012.
This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records.
The issues of entitlement to an increased evaluation in excess of 10 percent for tendonitis left shoulder, entitlement to an increased evaluation in excess of 10 percent for low back strain, and entitlement to a compensable rating for traumatic cataract with corneal scar left eye, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. In a September 2007 rating decision, the RO denied service connection for eczema; the Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period.
2. Evidence received since the September 2007, decision does not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for eczema.
CONCLUSIONS OF LAW
1. The September 2007 decision denying service connection for eczema is final. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156, 19.129, 19.192 (2016).
2. New and material evidence has not been received and the claim for service connection for eczema is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
VA has a duty to notify and assist claimants in substantiating a claim for VA benefits, as set out at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).
The RO issued a December 2006 letter to the Veteran addressing the criteria for service connection, and a May 2010 notice letter to the Veteran addressing the criteria needed to reopen a claim for service connection, which meets the notice requirements.
The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, post-service treatment records, and lay statements in support of the claim. The Board has also obtained VA treatment records and a VA examination report from July 2007.
The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. In reaching that conclusion, the Board notes that until a claim is reopened VA does not have a duty to obtain a medical opinion. See 38 C.F.R. § 3.159(c)(4)(C)(iii) (2016).
Accordingly, the Board may proceed to address the merits of the claim.
II. Legal Criteria
Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA will reopen the claim and review the former disposition of the claim. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b).
New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).
III. Factual Background and Analysis
In September 2007, the RO denied the Veteran's claim for entitlement to service connection for dishydrosis with eczema, of the hands. The Veteran was notified of this denial in a letter in September 2007, but did not appeal, and did not submit new and material evidence within the one year appeal period. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (presumption of regularity applies to RO's mailing of a VA decision to a veteran). Therefore, this denial became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103.
In its September 2007 denial, the RO indicated the service treatment records show complaints of itchy hands, but do not show any complaints on discharge. The RO indicated also that the evidence did not show any complaints of or treatment for eczema following discharge from service. Additionally, the Veteran was sent a letter inviting her to submit evidence indicating he had eczema that was linked to her service, however she did not supply such evidence.
According to VAMC treatment records, since 2007, there is no indication the Veteran has been diagnosed with or treated for eczema. The Veteran to date has not submitted any evidence indicating she is being treated for eczema.
In April 2010, the Veteran submitted a request to reopen the previously denied claim of service connection for eczema, but she did not provide any new evidence of a diagnosis of or treatment for eczema.
In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118.
There has been no evidence received since the September 2007 denial that indicates the Veteran suffers from eczema. As there is no additional evidence that has been submitted, there is no new evidence to be reviewed that could relate to the basis for the prior denial and raising a reasonable probability of substantiating the claim. The reopening of the claim is not warranted.
ORDER
The application to reopen the claim for service connection for eczema is denied.
REMAND
The Veteran last had an examination with regard to his left shoulder and back in May 2010.
The Board observes that a new precedential opinion that directly impacts the issues of entitlement to an increased evaluation for left shoulder tendonitis, and entitlement to an increased evaluation for low back strain, was issued by the United States Court of Appeals for Veterans Claims (Court). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Also, the Court rejected VA's argument that the final sentence of § 4.59 cannot create a testing requirement because, if it did, absurdity would result. Specifically, VA contended that, because the upper extremities are not weight-bearing, requiring that all joints be tested in weight-bearing capacity would require veterans with upper extremity joint disabilities to walk on their hands. The Court responded that whether upper extremities are or can be weight-bearing is a medical question that it is not competent to answer. The May 2010 report does not comply with Correia. Accordingly, the Veteran must be afforded a new VA examination to correct all of the deficiencies noted above.
With regard to the Veteran's traumatic cataract, corneal scar left eye, the Veteran has not had a VA examination assessing her eye. The Board notes the Veteran had been scheduled for an examination in May 2010, but she failed to report.
The Veteran's representative indicated in an IHP that the Veteran's eyes have worsened in nature, and requested an examination to assess the current nature and extent of her eye condition.
The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). As the Veteran's representative has indicated the Veteran has suffered an increase in symptomatology, and the Veteran has not yet undergone a VA examination, the Board finds that an evaluation would be helpful in resolving the issues raised by the instant appeal.
Accordingly, in light of all the above, the RO should arrange for the Veteran to undergo a VA examination, by an appropriate VA physician, in connection with her claim for an increased rating.
Accordingly, the case is REMANDED for the following action:
1. Obtain and associate with the Veteran's claims file all outstanding treatment records.
2. The RO/AMC should schedule an opthalmological examination by a qualified provider to ascertain the current level of severity of the Veteran's traumatic cataract with corneal scar left eye.
The entire file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review If the examiner does not have access to electronic medical records, any such relevant treatment records must be otherwise made available to the examiner for review.
The examiner should describe all associated symptomatology.
3. Schedule the Veteran for an appropriate VA examination to evaluate the service connected low back strain and left shoulder tendonitis.
Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing.
If the back cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done.
If the left shoulder cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done.
4. After completing the above, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs